The American Civil Liberties Union strongly urges you vote “YES” on the
Kennedy-Smith hate crimes prevention amendment to the Defense Department
authorization bill, when the amendment likely comes to the Senate floor next
week.

The ACLU has a long history of supporting civil rights legislation,
including legislation responding to criminal civil rights violations. At the same time, no other organization
in the country has a longer and more consistent record in protecting the
freedoms embodied in the First Amendment to the Constitution.

For nearly a decade since the hate crimes legislation was first
introduced in 1997, the ACLU withheld support for the bill out of concern that,
unless amended to block evidence of speech and association not specifically
related to a crime, it could chill constitutionally protected speech. That problem has been fixed, and the
ACLU now strongly supports the legislation as protecting both civil rights and
free speech and association.

In fact, we are pleased that Senators Kennedy and Smith and 42 other
cosponsors included in the free-standing hate crimes bill--and in the
Kennedy-Smith amendment, which has language that is identical to the text of the
bill--has a new evidentiary section that will be the strongest protection
against the misuse of a person’s free speech that Congress has enacted as part
of the federal criminal code.
No other section of the criminal code has an explicit provision
prohibiting the use of a defendant’s speech or association unless it was
specifically related to the violent crime.
This extraordinary and unprecedented provision will ensure that the
hate crimes legislation will not chill constitutionally protected speech or
association.

As a result,
the ACLU is strongly urging support for the Kennedy-Smith hate crimes amendment
expanding the federal criminal civil rights statutes--so that there will be
expanded federal jurisdiction to prosecute criminal civil rights violations when
state and local governments are unwilling or unable to prosecute. The hate crimes legislation
accomplishes this goal by providing a stronger federal response to criminal
civil rights violations, but tempering it with clear protections for free speech
and association.

Important
New Provision on Free Speech and Association

The ACLU has a
long record of support for stronger protection of both free speech and civil
rights. Those positions are not
inconsistent. In fact, vigilant
protection of free speech rights historically has opened the doors to effective
advocacy for expanded civil rights protections.

Fourteen years
ago, the ACLU submitted a brief to the Supreme Court urging the Court to uphold
a Wisconsin hate crime sentencing enhancement statute as constitutional. However, the ACLU also asked the Court
“to set forth a clear set of rules governing the use of such statutes in the
future.” The ACLU warned the Court
that “if the state is not able to prove that a defendant’s speech is linked to
specific criminal behavior, the chances increase that the state’s hate crime
prosecution is politically inspired.”
The evidentiary provision in the Kennedy-Smith amendment will help avoid
that harm.

The ACLU
appreciates the sponsors’ inclusion of the evidentiary provision that prevents
the hate crimes legislation from having any potentially chilling effect on
constitutionally protected speech.
The evidentiary subsection in the Kennedy-Smith amendment provides
that:

Evidence
of expression or association of the defendant may not be introduced as
substantive evidence at trial, unless the evidence specifically relates to that
offense. However, nothing in this
section affects the rules of evidence governing the impeachment of a
witness.

This provision will reduce or
eliminate the possibility that the federal government could obtain a criminal
conviction on the basis of evidence of speech that had no role in the chain of
events that led to any alleged violent act proscribed by the statute.

This provision
in the Kennedy-Smith amendment almost exactly copies a paragraph in the
Washington State hate crimes statute.
Wash. Rev. Code § 9A.36.080(4).
This Washington State language is not new; the paragraph was added to the
Washington State statute as part of an amendment in 1993. The ACLU has conferred with litigators
involved in hate crimes prevention in Washington State. They report no complaints that the
provision inappropriately impedes prosecutions.

On its face, the hate crimes amendment punishes only the conduct of
intentionally selecting another person for violence because of that person’s
race, color, national origin, religion, gender, sexual orientation, gender
identity, or disability. The
prosecution must prove the conduct of intentional selection of the victim. Thus, the hate crimes amendment, like
the present principal criminal civil rights statute, 18 U.S.C. § 245 (“section
245”), punishes discrimination (an act), not bigotry (a belief).

The federal government usually proves the intentional selection element
of section 245 prosecutions by properly introducing ample evidence related to
the chain of events. For example,
in a section 245 prosecution based on race, a federal court of appeals found
that the prosecution met its burden of proving that the defendant attacked the
victim because of his race by introducing admissions that the defendant stated
that “he had once killed a nigger queen,” that he attacked the victim “[b]ecause
he was a black fag,” and by introducing evidence that the defendant allowed a
white gay man to escape further attack, but relentlessly pursued the
African-American gay victim.
Bledsoe, 728 F.2d at 1098.

Although the Justice Department has argued that it usually avoids
attempting to introduce evidence proving nothing more than that a person holds
racist or other bigoted views, it has at least occasionally introduced such
evidence. In at least one decision,
a federal court of appeals expressly found admissible such evidence that was
wholly unrelated to the chain of events that resulted in the violent act. United States v. Dunnaway, 88
F.3d 617 (8th Cir. 1996). The court
upheld the admissibility of a tattoo of a skinhead group on the inside lip of
the defendant because “[t]he crime in this [section 245] case involved elements
of racial hatred.” Id. at
618. The tattoo was admissible even
in the absence of any evidence in the decision linking the skinhead group to the
violent act.

The decision admitting that evidence of a tattoo confirmed our concerns
expressed in the ACLU’s brief filed with the Supreme Court in support of the
Wisconsin hate crimes penalty enhancement statute. In asking for guidance from the Court on
the applicability of such statutes, the ACLU stated its concern that evidence of
speech should not be relevant unless “the government proves that [the evidence]
is directly related to the underlying crime and probative of the defendant’s
discriminatory intent.” The ACLU
brief urged that, “[a]t a minimum, any speech or association that is not
contemporaneous with the crime must be part of the chain of events that led to
the crime. Generalized evidence
concerning the defendant’s racial views is not sufficient to meet this
test.”

The evidentiary provision in the Kennedy-Smith amendment is important
because, without it, we could see more evidence of unrelated speech admitted in
hate crime prosecutions. Many of
the arguments made in favor of hate crime legislation today are very different
than the arguments made in favor of enacting section 245 37 years ago. At that time, the focus was on giving
the federal government jurisdiction to prosecute numerous murders of
African-Americans, including civil rights workers, which had gone unpunished by
state and local prosecutors. The
intent was to have a federal backstop to state and local law enforcement.

The problem
today is that there is an increasing focus on “combating hate,” fighting “hate
groups,” and identifying alleged perpetrators by their membership in such
groups--even in the absence of any link between membership in the group and the
violent act. Those arguments are
very different from the arguments made in support of section 245 when it passed
as an important part of the historic Civil Rights Act of 1968.

The evidentiary provision removes the danger that--after years of debate
focused on combating “hate”--courts, litigants, and jurors applying a federal
hate crime statute could be more likely to believe that speech-related evidence
that is unrelated to the chain of events leading to a violent act is a proper
basis for proving the intentional selection element of the offense. The provision will stop the temptation
for prosecutors to focus on proving the selection element by showing “guilt by
association” with groups whose bigoted views we may all find repugnant, but
which may have had no role in committing the violent act. We should add that evidence of
association could also just as easily focus on many groups representing the very
persons that the hate crimes legislation should protect.[1] The evidentiary provision in the
Kennedy-Smith amendment precludes all such evidence from being used to prove the
crime, unless it specifically related to the violent offense.

The evidentiary provision in the Kennedy-Smith amendment is not overly
expansive. The provision will bar
only evidence that had no specific relationship to the underlying violent
offense. It will have no effect on
the admissibility of evidence of speech that bears a specific relationship to
the underlying crime--or evidence used to impeach a witness. Thus, the proposal will not bar all
expressions or associations of the accused. It is a prophylactic provision that is
precisely tailored to protect against the chilling of constitutionally protected
free speech.

The Persistent Problem of Criminal Civil
Rights Violations

The
ACLU supports the Kennedy-Smith amendment because we have long supported
providing remedies against invidious discrimination and have long urged that
discrimination by private persons be made illegal when it excludes persons from
access to fundamental rights or from the opportunity to participate in the
political or social life of the community.
The serious problem of crime directed at members of society because of
their race, color, religion, gender, national origin, sexual orientation, gender
identity, or disability merits legislative action.

Such action is
particularly timely as a response to the rising tide of violence directed at
people because of such characteristics.
Those crimes convey a constitutionally unprotected threat against the
peaceable enjoyment of public places to members of the targeted group.

Pursuant to the Hate Crime Statistics Act, the Federal Bureau of
Investigation annually collects and reports statistics on the number of
bias-related criminal incidents reported by local and state law enforcement
officials. For 2003, based on
reports from state and local law enforcement agencies, the FBI reported 7,489
incidents covered by the Act. 3,844
of those incidents were related to race, 1,343 to religion, 1,239 to sexual
orientation, 1,026 to ethnicity or national origin, 33 to disability, and four
to multiple categories.

Existing federal law does not provide any separate offense for violent
acts based on race, color, national origin, or religion, unless the defendant
intended to interfere with the victim’s participation in certain enumerated
activities. 18 U.S.C.A. §
245(b)(2). During hearings in the
Senate and House of Representatives, advocates for racial, ethnic, and religious
minorities presented substantial evidence of the problems resulting from the
inability of the federal government to prosecute crimes based on race, color,
national origin, or religion without any tie to an enumerated activity. Those cases include violent crimes based
on a protected class, which state or local officials either inadequately
investigated or declined to prosecute.

In addition,
existing federal law does not provide any separate offense whatsoever for
violent acts based on sexual orientation, gender, gender identity, or
disability. The exclusion of sexual
orientation, gender, gender identity, and disability from section 245 of the
criminal code can have bizarre results.
For example, in an appeal by a person convicted of killing an
African-American gay man, the defendant argued that “the evidence established,
if anything, that he beat [the victim] because he believed him to be a
homosexual and not because he was black.”
United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984),
cert. denied, 469 U.S. 838 (1984). Among the evidence that the court cited
in affirming the conviction because of violence based on race, was testimony
that the defendant killed the African-American gay victim, but allowed a white
gay man to escape. Id. at
1095, 1098. Striking or killing a
person solely because of that person’s sexual orientation would not have
resulted in a conviction under that statute.

In addition to the highly publicized accounts of the deaths of Matthew
Shepard and Billy Jack Gaither, other reports of violence because of a person’s
sexual orientation or gender identity include:

- An account by the Human Rights Campaign of “[a] lesbian security guard,
22, [who] was assigned to work a holiday shift with a guard from a temporary
employment service. He
propositioned her repeatedly.
Finally, she told him she was a lesbian. Issuing anti-lesbian slurs, he raped
her.”

- A report by Mark Weinress, during an American Psychological Association
briefing on hate crimes, of his beating by two men who yelled “we kill faggots”
and “die faggots” at the victim and his partner from the defendants’ truck,
chased the victims on foot while shouting “death to faggots,” and beat the
victims with a billy club while responding “we kill faggots” when a bystander
asked what the defendants were doing.

- A report by
the National Gay and Lesbian Task Force of a letter from a person who wrote that
she “was gang-raped for being a lesbian.
Four men beat me, spat on me, urinated on me, and raped me . . . . When I
reported the incident to Fresno police, they were sympathetic until they learned
I was homosexual. They closed their
book, and said, ‘Well, you were asking for it.’”

- An article
in the Washington Post about five Marines who left the Marine Barracks on
Capitol Hill to throw a tear gas canister into a nearby gay bar. Several persons were treated for nausea
and other gas-related symptoms.

The
problem of crimes based on gender is also persistent. For example, two women cadets at the
Citadel, a military school that had only recently opened its doors to female
students, were singled out and
“hazed” by male cadets who did not believe that women had a right to be at the
school. Male cadets allegedly
sprayed the two women with nail polish remover and then set their clothes
ablaze, not once, but three times within a two month period. One male cadet also threatened one of
the two women by saying that he would cut her “heart out” if he ever saw her
alone off campus.

Federal
legislation addressing such criminal civil rights violations is necessary
because state and local law enforcement officers are sometimes unwilling or
unable to prosecute those crimes because of either inadequate resources or their
own bias against the victim. The
prospect of such failure to provide equal protection of the laws justifies
federal jurisdiction.

For example, state and local law
enforcement officials have often been hostile to the needs of gay men and
lesbians. The fear of state and
local police--which many gay men and lesbians share with members of other
minorities--is not unwarranted. For
example, until recently, the Maryland state police department refused to employ
gay men or lesbians as state police officers. In addition, only blocks from the
Capitol a few years ago, a District of Columbia police lieutenant who headed the
police unit that investigates extortion cases was arrested by the FBI for
attempting to extort $10,000 from a man seen leaving a gay bar. Police officers referred to the practice
as “fairy shaking.” The problem is
widespread. In fact, the National
Coalition of Anti-Violence Programs reports several hundred anti-gay incidents
allegedly committed by state and local law enforcement officers annually. The federal government clearly has an
enforcement role when state and local governments fail to provide equal
protection of the laws.

We strongly urge you to vote “YES” on the Kennedy-Smith hate crimes
prevention amendment to the Defense Department authorization bill.

Sincerely,

Caroline FredricksonDirector

Christopher AndersLegislative Counsel

End Notes:

[1] For example, many of the principal First
Amendment association decisions arose from challenges to governmental
investigations of civil rights and civil liberties organizations. See, e.g., Gibson v.
Florida Legislative Investigation Committee, 372 U.S. 539 (1962) (holding
that the NAACP could refuse to disclose its membership list to a state
legislature investigating alleged Communist infiltration of civil rights
groups); Bates v. City of Little Rock, 361 U.S. 516 (1960) (reversing a
conviction of NAACP officials who refused to comply with local ordinances
requiring disclosure of membership lists); NAACP v. State of Alabama, 357
U.S. 449 (1958) (holding as unconstitutional a judgment of contempt and fine on
the NAACP for failure to produce its membership lists); New Jersey Citizen
Action v. Edison Township, 797 F.2d 1250 (3rd Cir. 1986) (refusing to
require the fingerprinting of door-to-door canvassers for a consumer rights
group), cert. denied, sub nom. Piscataway v. New
Jersey Citizen Action, 479 U.S. 1103 (1987); Familias Unidas v.
Briscoe, 619 F.2d 391 (5th Cir. 1980) (refusing a request to compel the
disclosure of the membership list of a public school reform group); Committee
in Solidarity with the People of El Salvador v. Sessions, 705 F.Supp. 25
(D.D.C. 1989) (denying a request for preliminary injunction against FBI’s
dissemination of information collected on foreign policy group); Alliance to
End Repression v. City of Chicago, 627 F.Supp. 1044 (1985) (police
infiltrated and photographed activities of a civil liberties group and an
anti-war group).